(a) A lawyer shall not act as an advocate at a trial in which the
lawyer is likely to be a necessary
witness except whereunless:

(1) The testimony relates to an uncontested
issue;

(2) The testimony relates to the nature and value of legal services
rendered in the case; or

(3) Disqualification of the lawyer would work substantial
hardship on the client because of the distinctive value of the lawyer or the lawyer's
firm as counsel in the particular case.

(b) A lawyer may act as an advocate in a trial in which another
lawyer in the lawyer's firm is likely
to be called as a witness unless precluded from doing so by a conflict of interest.

Comment

[1] Combining the roles of advocate and witness can prejudice the opposing party
and can involve
a conflict of interest between the lawyer and client.

Advocate -Witness Rule

[2] The tribunal has proper objection when the trier of fact may be confused or misled
by a lawyer
serving as both advocate and witness. The opposing party has proper objection where the
combination of roles may prejudice that party's rights in the litigation. A witness is required to
testify on the basis of personal knowledge, while an advocate is expected to explain and
comment
on evidence given by others. It may not be clear whether a statement by an advocate-witness
should
be taken as proof or as an analysis of the proof.

[3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously
serving as
advocate and necessary witness except in those circumstances specified in paragraphs (a)(1)
through
(a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities
in the
dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns
the
extent and value of legal services rendered in the action in which the testimony is offered,
permitting
the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue.
Moreover, in such a situation the judge has first hand knowledge of the matter in issue; hence,
there
is less dependence on the adversary process to test the credibility of the testimony.

[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing
is required
between the interests of the client and those of the tribunal and the opposing party.
Whether the
tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends
on the
nature of the case, the importance and probable tenor of the lawyer's testimony, and the
probability
that the lawyer's testimony will conflict with that of other witnesses. Even if there is a risk of
such
prejudice, in determining whether the lawyer should be disqualified due regard must be given to
the
effect of disqualification on the lawyer's client. It is relevant that one or both parties could
reasonably foresee that the lawyer would probably be a witness. The principle of
imputed
disqualificationconflict of interest principles stated in RuleRules 1.7, 1.9, and 1.10 hashave no
application to this aspect of the problem.

[5] Because the tribunal is not likely to be misled when a lawyer acts as advocate in a
trial in which
another lawyer in the lawyer's firm will testify as necessary witness, paragraph (b) permits the
lawyer to do so except in situations involving a conflict of interest.

Conflict of Interest

[6]Whether the combination of roles involves improperIn
determining if it is permissible to act
as advocate in a trial in which the lawyer will be a necessary witness, the lawyer must also
consider
that the dual role may give rise to a conflict of interest with respect to the client is
determined by the
application of the rules concerning conflict of interest, most importantly, Rulesthat
will require
compliance with Rule 1.7, 1.8, andor 1.9. For example, if there
is likely to be substantial conflict
between the testimony of the client and that of the lawyer or a member of the lawyer's
firm, the
representation is improperinvolves a conflict of interest that requires
compliance with Rule 1.7.
This would be true even though the lawyer might not be prohibited by paragraph (a) from
simultaneously serving as advocate and witness because the lawyer's disqualification would
work
a substantial hardship on the client. Similarly, a lawyer who might be permitted to
simultaneously
serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by
Rule
1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client
or is
called by the opposing party. Determining whether or not such a conflict exists is primarily the
responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure
the
client's consent in writing after consultation. In some cases, the lawyer will be precluded from
seeking the client's consent. See Comment to Rule 1.7. If a
lawyer who is a member of a firm may
not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the
firm
also.See Rule 1.0(b) for the definition of "consent in writing".

[7] Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate
because
a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph
(a).
If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from
representing the client in the matter, other lawyers in the firm will be precluded from the
representing the client by Rule 1.10 unless the client gives consent under the conditions stated in
Rule 1.7.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney
Standards
Committee on 09/20/85 and 11/08/85; Minutes of the Joint Committee on Attorney
Standards on
06/08/04; 03/18/05, 06/14/05.